G.R. No.

164978 October 13, 2005

AQUILINO Q. PIMENTEL, JR., EDGARDO J. ANGARA, JUAN PONCE ENRILE, LUISA P.
EJERCITO-ESTRADA, JINGGOY E. ESTRADA, PANFILO M. LACSON, ALFREDO S. LIM,
JAMBY A.S. MADRIGAL, and SERGIO R. OSMEA III, Petitioners
vs.
EXEC. SECRETARY EDUARDO R. ERMITA, FLORENCIO B. ABAD, AVELINO J. CRUZ,
JR., MICHAEL T. DEFENSOR, JOSEPH H. DURANO, RAUL M. GONZALEZ, ALBERTO G.
ROMULO, RENE C. VILLA, and ARTHUR C. YAP, Respondents.
Facts: This petition was filed by the Petitioner Senators questioning the constitutionality of the
appointments issued by PGMA to respondents in acting capacity. PGMA eventually appointed the
respondents Secretary (Ad interim).
Issue: WoN appointment of respondents as acting secretaries without the consent of the
Commission on Appointments while Congress is in session is unconstitutional.
Held: No
On the Mootness of the Petition
The petition is moot because President Arroyo had extended to respondents ad interim
appointments immediately after the recess of Congress. However, as an exception to
the rule on mootness, courts will decide a question otherwise moot if it is capable of
repetition yet evading review.
On the Nature of the Power to Appoint
The power to appoint is essentially executive in nature, and the legislature may not
interfere with the exercise of this executive power except in those instances when the Constitution
expressly allows it to interfere. Limitations on the executive power to appoint are construed strictly
against the legislature. The scope of the legislatures interference in the executives power to
appoint is limited to the power to prescribe the qualifications to an appointive office. Congress
cannot appoint a person to an office in the guise of prescribing qualifications to that office. Neither
may Congress impose on the President the duty to appoint any particular person to an office.
However, even if the Commission on Appointments is composed of members of Congress, the
exercise of its powers is executive and not legislative. The Commission on Appointments does not
legislate when it exercises its power to give or withhold consent to presidential appointments.
Thus:
xxx The Commission on Appointments is a creature of the Constitution. Although its membership
is confined to members of Congress, said Commission is independent of Congress. The powers of
the Commission do not come from Congress, but emanate directly from the Constitution. Hence, it
is not an agent of Congress. In fact, the functions of the Commissioner are purely executive in
nature. Xxx
On Petitioners Standing
Considering the independence of the Commission on Appointments from Congress, it is error for
petitioners to claim standing in the present case as members of Congress. President Arroyos

issuance of acting appointments while Congress is in session impairs no power of Congress.

Among the petitioners, only the following are members of the Commission on Appointments of the
13th Congress: Senator Enrile as Minority Floor Leader, Senator Lacson as Assistant Minority
Floor Leader, and Senator Angara, Senator Ejercito-Estrada, and Senator Osmea as members.
Thus, on the impairment of the prerogatives of members of the Commission on Appointments, only
Senators Enrile, Lacson, Angara, Ejercito-Estrada, and Osmea have standing in the present
petition. This is in contrast to Senators Pimentel, Estrada, Lim, and Madrigal, who, though vigilant
in protecting their perceived prerogatives as members of Congress, possess no standing in the
present petition.
The Constitutionality of President Arroyos Issuance of Appointments to Respondents as Acting
Secretaries
Petitioners Contention: (1) Basing on Section 10, Chapter 2, Book IV of Executive Order No.
292 ("EO 292"), PGMA should not have appointed respondents as acting secretaries because "in
case of a vacancy in the Office of a Secretary, it is only an Undersecretary who can be designated
as Acting Secretary."
SEC. 10. Powers and Duties of the Undersecretary. - The Undersecretary shall:
(5) Temporarily discharge the duties of the Secretary in the latters absence or inability to discharge
his duties for any cause or in case of vacancy of the said office, unless otherwise provided by law.
Where there are more than one Undersecretary, the Secretary shall allocate the foregoing powers
and duties among them. The President shall likewise make the temporary designation of Acting
Secretary from among them;
(2) Petitioners further assert that "while Congress is in session, there can be no
appointments, whether regular or acting, to a vacant position of an office needing confirmation by
the Commission on Appointments, without first having obtained its consent."
Respondents Contention: Respondents maintain that the President can issue appointments in an
acting capacity to department secretaries without the consent of the Commission on Appointments
even while Congress is in session. Respondents point to Section 16, Article VII of the 1987
Constitution. Section 16 reads:
SEC. 16. The President shall nominate and, with the consent of the Commission on Appointments,
appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution. He shall also appoint all other officers of the
Government whose appointments are not otherwise provided for by law, and those whom he may
be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers
lower in rank in the President alone, in the courts, or in the heads of departments, agencies,
commissions, or boards.
The President shall have the power to make appointments during the recess of the Congress,
whether voluntary or compulsory, but such appointments shall be effective only until disapproval
by the Commission on Appointments or until the next adjournment of the Congress.
Respondents also rely on EO 292, which devotes a chapter to the Presidents power of
appointment. Sections 16 and 17, Chapter 5, Title I, Book III of EO 292 read:

SEC. 16. Power of Appointment. The President shall exercise the power to appoint such
officials as provided for in the Constitution and laws.
SEC. 17. Power to Issue Temporary Designation. (1) The President may temporarily
designate an officer already in the government service or any other competent person to
perform the functions of an office in the executive branch, appointment to which is vested in
him by law, when: (a) the officer regularly appointed to the office is unable to perform his
duties by reason of illness, absence or any other cause; or (b) there exists a vacancy[.]
(2) The person designated shall receive the compensation attached to the position, unless he is
already in the government service in which case he shall receive only such additional compensation
as, with his existing salary, shall not exceed the salary authorized by law for the position filled. The
compensation hereby authorized shall be paid out of the funds appropriated for the office or agency
concerned.
(3) In no case shall a temporary designation exceed one (1) year.
Court: The essence of an appointment in an acting capacity is its temporary nature. It is a stop-gap
measure intended to fill an office for a limited time until the appointment of a permanent occupant
to the office.16 In case of vacancy in an office occupied by an alter ego of the President, such as the
office of a department secretary, the President must necessarily appoint an alter ego of her choice
as acting secretary before the permanent appointee of her choice could assume office.
Congress, through a law, cannot impose on the President the obligation to appoint automatically
the undersecretary as her temporary alter ego. An alter ego, whether temporary or permanent,
holds a position of great trust and confidence. Congress, in the guise of prescribing qualifications to
an office, cannot impose on the President who her alter ego should be.
The law expressly allows the President to make such acting appointment. Section 17, Chapter 5,
Title I, Book III of EO 292 states that "[t]he President may temporarily designate an officer already
in the government service or any other competent person to perform the functions of an office in
the executive branch." Thus, the President may even appoint in an acting capacity a person not yet
in the government service, as long as the President deems that person competent.
Ad-interim appointments- extended only during a recess of Congress; submitted to the Commission
on Appointments for confirmation or rejection.
acting capacity- may be extended any time there is a vacancy; way of temporarily filling important
offices but, if abused, they can also be a way of circumventing the need for confirmation by the
Commission on Appointments.
However, we find no abuse in the present case. The absence of abuse is readily apparent from
President Arroyos issuance of ad interim appointments to respondents immediately upon the
recess of Congress, way before the lapse of one year.